San Jose Breaking News, Sports, Weather, Traffic

Q & A with Laurie Levenson

Mercury News

Posted:
01/26/2006 12:46:40 PM PST

Updated:
02/12/2007 12:47:46 PM PST

While in law school, Laurie Levenson was chief articles editor of the UCLA Law Review. After graduation, she served as law clerk to the Honorable James Hunter III of the United States Court of Appeals for the Third Circuit. In 1981, she was appointed assistant United States Attorney, Criminal Section, in Los Angeles, where she was a trial and appellate lawyer for eight years and attained the position of senior trial attorney and assistant division chief. Levenson was a member of the adjunct faculty of Southwestern University Law School from 1982-89. She joined the Loyola faculty in 1989 and served as Loyola's associate dean for academic affairs from 1996-99.

NOTE: The Laurie Levenson chat was Jan. 26, 2006. Below is an archive of the questions and answers.

Q: Laurie, whats steps should I take to look into (a) an attorneys trial history demarcated by wins and losses and (b) perform a background check on an officer as well as a prosecutor in connection with finding out if they have checkered careers?
Anonymous 2/09/06

A: I don't know of any posting of win/loss records of lawyers. Even if those records exist, they're not that helpful unless they give the background and complexity of the case. However, if a lawyer has a "checkered" past, the California State Bar will probably have a record.
Laurie Levenson 2/09/06

Q: Dear Laurie,
Thank you for your earlier wise responses.

Advertisement

Another issue which plagues those who have been falsely accused and not afforded a fair trial is the outrageously long period it takes to appeal. By the time a case is taken through the arduous appeal process to a higher court, typically outside of a State Court, a persons career and future is already ruined. Embedded within our legal systems due process guarantee is that a person accused of a felony is brought to trial within 60 days. However, when given a sham trial the actual trial period can extend for decades. Many cases are black and white determinations that there is no way a person can be guilty, however, as the Mercury News expose so aptly illustrated, Appellate courts dont give a dam. Should not the 60 days to trial also include the Appeal time? I.e. due process must be totally respected by the government, if they mess up its over. As it stands, they wipe out innocent citizens with bureaucracy.
Clive Boustred, Santa Cruz, CA 2/06/06

A: Dear Clive:
Unfortunately, appellate cases do take a long time. Part of the reason is the load of cases the courts handle and the need to go through the record. The other reason for delay is sometimes the lawyers and the extensions they seek in preparing appeals. Overall, you are right. It would be much better to have a quicker process.
Laurie Levenson
Laurie Levenson 2/06/06

Q: Justice Edward A. Panelli, Retired, former presiding justice of the 6th Appellate District and former justice on the California Supreme Court wrote:
Therefore, the role of the appellate court is limited. Under our state constitution, only prejudicial error requires reversal of the case, which gives rise to the harmless-error rule. If it is ``not reasonably probable'' (the constitutional standard) that the result would be different but for the error, then the appellate court must affirm the trial court.
It astounds me that someone who held such senior positions does not recognize, for example, ineffective counsel as a means of reversal. Ineffective counsel has nothing to do with prejudicial error. In a Trial By Jury if a judge determines what evidence comes before the jury, then the judge determines the outcome of the trial not the jury. What should we do to correct our courts?
Clive Boustred, Santa Cruz, CA 2/01/06

A: Actually, even the ineffective assistance of counsel standard has built into it a "prejudicial" error standard because the defendant must show that counsel's errors materially prejudiced his/her proceedings. One thing we could do to correct the situation is to be cautious in calling errors "harmless error," especially when there are concerns aobut the adequacy of counsel's representation.
Laurie Levenson
Laurie Levenson 2/01/06

Q: For someone who went to SCU law school, passed the bar, and has first-hand experience with all the problems cited in Santa Clara County courts, including the Sixth District Appellate Court, can you offer any career advice? It is so hard to practice when the playing field is not level. Like you, I fear the situation is probably the same in other counties.
I really am seeking an area of quasi-legal work that is not so discouraging as working in this county's legal system.
Anonymous, Santa Clara, CA 1/28/06

A: You don't mention your areas of interests. Actually, there are probably more opportunities than you know. Also, it is important that committed people stay in the system so there can be positive changes.
Laurie Levenson 1/28/06

Q: Dear Laurie i am glad to see that someone has actually brought this to everyones attention.In December 2005, I recently learned that a judge with held information in my father's case, during the sentencing faze. Which led to a mistrial. It has taken 3 trials and 16 years later for the case to get to the federal courts, to notify us that there was information with held. How is it possible for the courts to go so long to notify someone that they messed up? They want to take him to trial again. Can he request that he not go to trial, but yet request a new sentencing hearing? How often do the courts actually shorten a sentence because of information that gets with held during the sentencing faze?
worried about dad, san jose,ca 1/26/06

A: Is your father being represented by a lawyer on this? He should be. It is a very serious matter when prosecutors withhold evidence and it can have an effect on whether there is a retrial or resentencing. Although it isn't unusual for new evidence to be "discovered" later in the process, it is unusual for courts to grant a new trial. This is worth checking out.
Laurie Levenson
Laurie Levenson 1/27/06

Q: Hi Laurie, Do you have an opinion on the influence of the media on verdicts? I think they do influence the juries decisions.
I have been lucky, I have lived in San Jose since childhood and never been arrested. I walk the straight and narrow. But, if I was arrested, I would think a public relations person would be they second person to hire, after an attorney. To tell you the truth, it is scary for a person like me to think of what could happen even if you are innocent. Thanks for your response.
Pat, San Jose, Ca 1/27/06

A: Dear Pat:
There is certainly a possibility that the media can influence a verdict. For that reason, judges must be extra careful to screen jurors to see how they have been affected by pretrial publicity. The problem is that some jurors are "stealth jurors" who want to sit on juries because they have an agenda. Usually, this only happens in high profile cases, but it can happen in other cases. I believe that thorough voir dire is critical and that the media must responsibly report crime issues. For a criminal defendant, the best news is NO NEWS.
Laurie
Laurie Levenson 1/27/06

Q: Dear Laurie,
What percentage of guilty people are never brought to justice or are set free due to a failure of proof?
Thanks Matt
Matt, San Diego 1/26/06

A: I'm not sure we have an exact figure. It depends on the type of crime. For minor and white collar offenses, a significant percentage are not "brought to justice" for a variety of reasons. However, there is a much higher rate of prosecution for crimes of violence.
Laurie Levenson 1/26/06

Q: The cast of characters in Santa Clara's criminal justice system is large for a county of 1,000,000 plus citizens. The number of individuals singled out by the Merc is relatively small. Do you think that maybe the brush stroke painting the court system, DA's, defense counsel, and judges in Santa Clara County is perhaps too broad and maybe unfair?
Anonymous, los gatos, ca 1/26/06

A: Obviously, the article focuses on those in the criminal justice system who are not doing their duty. However, there are many dedicated public servants who work hard to ensure justice everyday. Their contributions should not be forgotten.
Laurie
Laurie Levenson 1/26/06

Q: Harmless error analysis is a fiction. It is based on the premise that the appellate court can read the trial transcript and determine what a "reasonable" jury "would have" done if the error had not occurred. Yet it is a fundamental precept of appellate review that appellate courts are not well-equipped to evaluate the strength of evidence, because reading the transcript is no substitute for viewing the trial personally. In addition, trial transcripts routinely contain court reporter errors. It would be easy to videotape all trials and send the tape to the court of appeal when the case is appealed. Do you think this would improve the appellate process? Thanks.
L.T., Riverside, CA 1/26/06

A: Realistically, I don't think appellate courts would watch the video of an entire trial because it is too time consuming. Although I agree with you that the written record does not tell the whole story, I don't think the appellate justice would prefer the video system.
Laurie
Laurie Levenson 1/26/06

Q: Ms. Levensen,
I read the Mercury News series about the court system in the 6th District and it was an eye opener. It's true that justice is blind unless you have position and wealth. Of all the cases mentioned the defendents were in the lower economic class. Do you think because of their status in society that they don't get fair representation possibly because of lack of money and influence. I feel the system has already convicted them just by association. The judges, lawyers, and the court system failed them because they're low class people.
Wyman Tom, San Jose, CA 1/26/06

A: Dear Wyman:
Yes, I fear that there is a large economic and class component to our criminal justice sytem. Although I have enormous admiration for Public Defender, it is an advantage to be able to hire your own lawyer(s) and investigator(s). Poorer defendants tend to spend more time in custody and are frequently treated differently by lawyers and judges. That is not the way it should be, but it is too often the way that it is.
Laurie
Laurie Levenson 1/26/06

Q: Well, you may be right about the situation being bad in other counties, but as a 25-year veteran of the San Francisco Public Defender's Office, and now as an appellate lawyer, San Francisco is way better, and transcripts from other counties do not reveal the same level of fanatical prosecution, weak defense, pro-prosecution judges and "harmless-error" justices revealed in the Mercury News series. I really think it is worse in Santa Clara than elsewhere.
Grace Suarez, San Francisco CA 1/26/06

A: Dear Grace:
You may very well be right. I remember when we used to work on State Bar matters together. You always had your finger on the pulse of the system.
Laurie
Laurie Levenson 1/26/06

Q: What do you think of the SLAPP suits in Santa Clara County where the prosecutors lie, the professional witness create and edit documents and the judges give either litigation privilege or afforded the SLAPP statute immunity? And then the final assault on justice - the victim has to pay these criminals for the court costs!
Anonymous, Campbell, CA 1/26/06

A: Lying in any case is wrong; however, I'm not really familiar with the SLAPP suits in your county.
Laurie Levenson
Laurie Levenson 1/26/06

Q: Can you sue an attorney for fees that you had to pay another firm to help get you out of a mess that she got you into in the first place. Her admission to this fact is of public record, and it cost me an additional $5000 because of her mistake. Also can a judge refuse to allow a person a restitution hearing?
Anonymous, santa clara,ca 1/26/06

A: The best person to consult regarding your question would be a legal malpractice lawyer. The local county bar association can probably give you a referral.
Laurie Levenson 1/26/06

Q: The situation portrayed in the series seem much worse than what I've seen or heard about in other counties. Do you have any ideas why Santa Clara's criminal justice system is so, well, messed up?
Grace Suarez, San Francisco CA 1/26/06

A: Dear Grace:
I'm not sure this will make you feel better or worse, but I'm not sure that Santa Clara is in worse shape than other counties. The newspaper just did a thorough job of exposing the problems in the county. Other jurisdictions haven't taken such a close look.
Laurie
Laurie Levenson 1/26/06

Q: Dear Laurie: Would you like to be on the U.S. Superme Court? You would be Outstanding there. Your fans will back you!
Uncle Dwight, Newport Beach, CA 1/26/06

A: Dear Uncle Dwight:
You are so kind. I am very happy being a nerdy law professor. No need for the robes.
Best,
Laurie Levenson
Laurie Levenson 1/26/06

Q: Laurie Levenson:
It has now actually been confirmed (which we knew all along) that this D.A. Ben Fields lies to judges in open court, creates untruths and twists truths, resulting in the judges making unfair decisions to admit twisted evidence based on their false belief and trust in him. The question is, is there any recourse for a defendant that was forced to negotiate a plea knowing Fields was "sandbagging", knowing there was no possibility of a fair trial? Now that this "sandbagging" has been publicly uncovered and confirmed, finally showing it's ugly face, can one go back and request a fair trail citing the now proven unethical practices of D.A. Ben Fields? Ben Fields ruins lives for the sake of the game. It is unbelievable to me that the D.A. has that much power over innocense, but it's true.
Anonymous, San Jose, CA 1/26/06

A: There are very limited rules on moving to vacate a guilty plea. General allegations against a prosecutor probably won't work. This is the type of question your plea counsel should investigate and answer.
Laurie Levenson 1/26/06

Q: I constantly hear the comment, "The US has the best justice system in the world". Most people who have seen the legal system at work in another country would find this claim dubious. What is the basis for this claim?
Anonymous 1/26/06

A: The basis of this claim is good, old-fashion American pride. In fact, we do have an excellent "system," but the sytem does not always work as it was designed. I honestly don't think we need to rehaul our system or adopt the inquisitorial system used in other countries. However, we must make sure each component of our system is operating properly.
Laurie Levenson 1/26/06

Q: Just curious - what role did you play in the Mercury News project and how did you get involved?
Anonymous 1/26/06

A: I was interviewed by the author of the story. I regularly answer questions for reporters as a form of community service. I have no particular relationship with the Mercury News nor was I any type of paid consultant.
Laurie Levenson 1/26/06

Q: This series was pretty eye-opening for me; I thought that in a day and age when the political arm of government is out of control with its self-centered platforms, corruption and partisan in-fighting, that the one place where government was getting it right was the courts. Obviously, I was a little too idealistic.
My question: Do you think the errors, misconduct and other problems that the Mercury News found in the study of Santa Clara County are actually indicative of systemic problems nationwide? And how high up does it go? Can we still count on the highest courts to catch problems and make sure justice is served.
Bob, San Francisco, CA 1/26/06

A: Dear Bob:
Unfortunately, I don't think that Santa Clara is an isolated case. In fact, I fear that things are much worse in many other jurisdictions in our country. As for the highest courts catching the problems, I don't think they really can. For example, the Supreme Court only hears 70-80 cases each year. The overload on the other appellate courts makes it difficult for them to catch all errors. Even worse, the courts have moved toward seeing errors as "harmless." It will take more dedication and resources to get us back on track.
Laurie
Laurie Levenson 1/26/06

Q: Dear Laurie,
I had a case in Santa Clara COunty where the opposing counsel pro-tem's in that courthouse and court room. Shouldn't that have been disclosed by the judge? and the opposing counsel? What happens when the suit is dismissed and then you discover the misconduct?
Grace H., San Jose, CA 1/26/06

A: It's hard to say without more details. It is always better for there to be full disclosure of any facts that could lead to a bias by the court. However,I don't know of any specific rule that required disclosure in the case you described. It is probably a good idea for courthouses to publish the list of pro tem judges so lawyers know of any possible conflicts. I will recommend that to the Supervising Judges I know.
Laurie
Laurie Levenson 1/26/06

Q: I was a witness in a Santa Clara County criminal trial. The DA was just obnoxious. All the evidence proved the innocence of the defendent, but the DA's ego made him take it to court. This DA lied in the closing rebuttal to hurt the defendent's credibility. He did it when nothing could be said afterwards. The DA during the course of the trial could have got clarification on the statement he used to discredit the defendent. He deliberately did not. How is this obnoxious behavior allowed? Luckily, the jury was disgusted with the DA, and the defendent found innocent. It makes you lose faith in those that are supposed to uphold justice.
Anonymous, San Jose, CA 1/26/06

A: It sounds like a case of prosecutorial misconduct. I'm only grateful that you and your fellow jurors saw through it. As you noted, it is important that prosecutors set aside their egos and constantly take the high ground in trials. When they don't, injustices occur.
Laurie
Laurie Levenson 1/26/06

Q: Ms. Levenson,
If you were the newly elected DA in the SC County. How would you fix the problems outlined in the article?
Martha
Anonymous 1/25/06

A: It is a big question and deserves a more lengthy answer than I can give you here. For any DA, a key focus must be on hiring, training and supervision of prosecutors. Prosecutors must work in a culture where "winning" is not the only goal. They must have the resources to do their job right and must be constantly supervised to determine whether they are playing fast and loose with the rule to win cases. This includes supervision and review of more senior deputy district attorneys. Also, I think that it is important to have civilian input. Regular meeting with community groups can be helpful.
Laurie
Laurie Levenson 1/26/06

Q: There is a fairly new law on the books that if a person is convicted of any "DV" crime they automatically lose legal (not just physical) custody of their children. I am finding that this is often misused in family court cases in order to get an advantage in custody battles which then of course has financial benefits. A DV crime can be "making a threatening phone call" or simply violating a restraining order such as in John's case. So, if your ex can convince an officer that he/she heard you make an argumentative phone call, then you may lose your kids.
At any rate - do you think it might be relevent to tie in how people versed in law enforsement misuse the familly court system? I have heard tons of stories of this. I personally had to leave the area to get away from harassment by law enforsement friends of my ex.
S, Now I live in another State 1/25/06

A: I think this is an area of concern and is subject to abuse. As I understand it, law enforcement officers are being constantly trained in this area, as well as the judges. You raise a very legitimate concern.
Laurie Levenson 1/26/06

Q: We have 10 times more people per capita in U.S. jails than any other nation in the world. Americans are not bad people, how come we have so many people in jail? What can we do to shut down evils in our courts and police?
Clive Boustred, Santa Cruz, CA 1/24/06

A: Excellent question. America does incarcerate its citizens at an extremely high rate. To reduce the incarceration rate, there are several things we need to do: (1) focus on crime prevention and education; (2) offer alternatives to prison; (3) consider treating drug use as more of a health problem than a law enforcement problem; (4) reconsider the use of 3-Strikes law for non-violent crimes; (5) reconsider our sentencing plans.
Laurie Levenson 1/24/06

Q: Dear Laurie Levenson:
My ex mother-in-law made a police report last February and had me arrested. My ex wife used false allegations in order to divorce me. She alleged that I raped her on Jan 1, 2004 but as a matter of fact, it was of mutual-consent. I was put in the jail and was released with no underlying charges. However, when I was in the jail, I called my ex wife for my anti-rejection drugs or my transplanted kidney would fail. She made police reports that I violated restraining order. I was not aware of the restraining order until I first saw the restraining order slip on the day I was released.
Now, I am on the jury trial for violating restraining order this coming February 6. According to my attorney, if I am convicted of violating of restraining order, I could lose child custody by the family court. We are involved in a severe child custody battle right now. She wants sole custody and I want joint custody.
Thank you,
John
John, Santa Clara, California 1/23/06

A: Dear John:
I assume that you have an attorney who will defend you in your upcoming Feb. 6 trial. You need to provide your attorney with as much information as possible to help you during the case. As you know, the results of this case could have far-reaching impact on your life and that of your family.
Prof. L
Laurie Levenson 1/24/06